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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> N. (L.) v. Zaidan & Anor [2005] IEHC 345 (7 October 2005)
URL: http://www.bailii.org/ie/cases/IEHC/2005/H345.html
Cite as: [2005] IEHC 345
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[2005] IEHC 345]
[2004 No. 644 JR]
BETWEEN
APPLICANT
RESPONDENT
EX-TEMPORE JUDGMENT of O'Neill J. delivered the 7th day of October, 2005.
In this case by order of the 5th April, 2005, Clarke J. gave leave to the applicant to apply for judicial review and for an order of certiorari quashing the decision of the Refugee Appeal Tribunal impugned in these proceedings. The history of the matter may be summarised as follows:
The applicant is a Moldovan. She was born in 1974. She is a married lady, twice married, having married at the early age of about eighteen in 1992 and was widowed in 1994. She married again in the year 2000 to her present husband. She has one child, a daughter born in 1992. The events which led up to these proceedings appear to begin in the year 2002. In that year it would appear that there was a change of government in Moldova. The communist party was elected to power and thereafter the difficulties of which the applicant complains appear to have begun. The applicant was involved in politics. She was a member of a political party which was opposed to the communist party and she attributes her difficulties to that fact. The events which were primarily the subject matter of her complaint appear to have started towards the latter half of 2002. In October 2002, around the time or shortly after, she had organised a TV crew to film a political meeting which she was involved in, she claims that she was subject to an assault by way of a hit and run crash. She was hospitalised at that time for approximately ten days and unfortunately as a result of this incident she suffered a miscarriage, she being then seven months pregnant. Shortly thereafter in the month of November, she appears to have been back in hospital again, but with an entirely naturally occurring complaint, high blood pressure it would appear, and she received treatment in hospital for that during the month of November of 2002. Then in the month of January 2003, she was back in hospital again for surgery for another naturally occurring complaint.
In the meantime her husband had left and had apparently attempted to come to Ireland and indeed had succeeded in getting into Ireland. He, in all, made three asylum applications all, it is common case, under different names, at different times and at different places. As a result of the difficulties that his wife was having he returned to Moldova and he was arrested apparently when he returned and he was detained for some fifteen days.
The next significant incident that occurs appears to have been on 7th July, 2003 and at that time after a political meeting, she claims that she was assaulted by a man that she was unable to identify, who apparently disappeared into the crowd and the crowd were unable to apprehend him and as a result of that she suffered what appears to be a relatively minor injury to her face. After that particular incident she went to live with her uncle and thereafter she left Moldova and ended up in Ireland.
She left Moldova on the 25th August, 2003. The method by which she left was that she drove to Bucharest. She had obtained a one month tourist visa for the U.K. which was from 1st August, 2003 to 1st September, 2003 and with the benefit of that visa she flew from Moldova to London. She then flew on from there to Belfast and then she travelled by taxi from Belfast to Dublin. On 4th September, 2003, approximately a week later she made her application for asylum. Having done that she then went through the normal procedures that are set out in the 1996 Refugee Act. She first of all filled in a lengthy questionnaire. Thereafter an interview was arranged with the Refugee Applications Commission and that interview was conducted and following upon that interview, the Commission in its s. 13 report, recommended that she not be accorded refugee status. She appealed against that and her appeal in due course came on before the Refugee Appeal Tribunal and it, by its decision, affirmed or agreed with the decision of the Commission and again recommended that she be refused refugee status. Following upon that she then instituted these judicial review proceedings which have come on for hearing before me.
The evidence that is before me consists of the affidavit and exhibits which are contained therein which are notedly the questionnaire, the interview notes, the s. 13 report and the grounding affidavit of Anne Fitzgibbon who, is the solicitor for the applicant and there is a separate affidavit from the applicant in which she agrees with the averments in the affidavit of Anne Fitzgibbon. Unfortunately what is not before me is any evidence at all in either affidavit as to what exactly happened in the hearing before the Tribunal nor is there anything in the way of a transcript of that hearing. The grounds upon which she has got leave to apply, all centre around the content of the decision of the Refugee Appeal Tribunal and I propose at this stage to read the operative part of that decision. It comes under the side heading of "Decision" and all of it is relevant to the argument that arose and hence I think it appropriate to quote it in its entirety and it is as follows:
"DECISION
I have carefully considered all of the papers submitted to me for the purposes of this appeal and all of the matters required to be considered under Section 16 (16) of the 1996 Act. The applicant must satisfy me that she has a well-founded fear of persecution for one of the reasons set out under Section 2 of the 1996 Act. I have considerable hesitation in believing the whole story of the applicant because of the inconsistencies and omissions between the information contained in the application for refugee status Questionnaire, the Interview notes and the evidence given by the applicant at the oral hearing. The Burden of Proof lies primarily with the applicant. The applicant's claim must be coherent and plausible. The hearing before the Tribunal is not a De Novo hearing in the true sense. There is an independent investigation and under the 1996 Act the Tribunal is required to consider matters under Section 16 (16). The Tribunal refers to the judgement of Mr. Justice Smyth in Yacef and the Minister for Justice, Equality and Law Reform delivered on the 4th October, 2002 in this regard. I note that the applicant submitted three medical reports two following the alleged hit and run incident in October of 2002 and the third following an alleged assault on 3rd July, 2003, prior to coming to Ireland. I note the contents of these reports but did not find them to be of any probative value. I also note that the applicant confirmed in evidence that she was not under any surveillance between October 2002, the date of the alleged hit and run and July 2003, when she apparently was assaulted when she left a meeting. I also note that the applicant confirmed to the Tribunal in relation to both of these incidents that she did not know the identity of the assailants or did not have any independent evidence to assist the police in their investigation. I note that she indicated that when she went to report the incidents to the police she was verbally abused. She claimed they laughed at her because she could not give them details or her allegations. According to the applicant, they asked her how does she think the police could help her otherwise. I also note that the applicant travelled to the UK on a valid one month tourist Visa with her daughter. She did not seek asylum in the UK. Her reasons for not doing so is not plausible. I also note that the applicant claims that she left Moldova on 25th August, and arrived in Ireland on 28th August, 2003. Her passport was stamped at Heathrow on the 26th August, 2003. However the applicant did not apply for asylum until the 4th September, 2003. This would indicate that the applicant did not apply for asylum immediately on entering the State.
I also note that while the applicant alleged that she was the victim of a hit and run when she was seven months pregnant, she was unable to provide a reasonable explanation to the Tribunal as to why her Questionnaire was silent on this issue. I also note that the applicant acknowledged that she was never arrested, detained or interrogated by the police or the authorities in Moldova. As already stated it is very difficult to see how the police could successfully prosecute allegations where there is little or no evidence to support a complaint. I also note that the applicant's husband had applied for asylum in Ireland on three occasions using different names. The first on the 17th April 2002 at Dublin airport, the second at Cork airport on 18 February, 2003, and again under a different name and the third time in September 2003, again, using a different name. In total three different names on three separate application forms. I also note that the applicant indicated in her interview that her daughter could not compete as a gymnast or practice because the applicant was a member of the PPCD. No evidence was canvassed before the Tribunal in this regard.
Reponses given by the applicant in both her Questionnaire and Interview and her evidence to the Tribunal are not supportive of her claim that she has a well-founded fear or persecution for a Convention reason or reasons under the Refugee Act of 1996 (as amended)."
He goes on to say then that:
"Pursuant to Section 16 (2) of the Refugee Act, 1996 (as amended), I affirm the recommendation made by the Refugee Applications Commissioner in accordance with Section 13(1) of the Refugee Act 1996 as amended."
The applicant's submissions can be I suppose fairly summarised or boiled down to two essential submissions which are as follows.
Firstly that a finding that the applicant's story was not credible was reached without carrying out a proper assessment of credibility and in regard to what is a proper assessment of credibility or how it should be carried out the applicant placed reliance on the case of Bujari v. The Minister for Justice Equality and Law Reform in which Finlay Geoghegan J. delivered judgment on the 7th May, 2003, and the relevant part of the judgment relied upon by the applicant in this regard reads as follows:
"The assessment of the credibility of the applicant is a matter for the examiner at first instance or on appeal by the member of the tribunal. It is not a matter for this court on judicial review. However, the process by which such credibility is assessed does appear to be a matter which is within the remit of this court upon a judicial review. Guidance is given as to the manner in which such assessment should be carried out by examiners in the UNHCR Handbook at paras. 195 to 202.
Paragraph 199 appears of particular relevance and provides:
'While an initial interview should normally suffice to bring an applicant's story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentations or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case'."
The learned judge goes on to say and I quote:
"I am satisfied, on a careful consideration of the decision of the member of the tribunal herein, that no reference is made at all by him to any explanation given to him at the oral hearing by the applicant for the material difference in the facts as stated in the initial interview and at the oral hearing."
Reliance is also placed on the judgment of Clarke J. in the case of Imafu v. The Minister for Justice Equality and Law Reform and Ors. in which judgment was delivered on the 27th May, 2005, in which the learned judge said the following:
"While there is not, as yet, a definitive ruling of this court (let alone the Supreme Court) as to the extent to which it is appropriate for this court to review the reasoning of a Tribunal such as the RAT with particular regard to its findings in relation to the credibility of an applicant, there are a number of decisions of this court at the leave stage from which it may be gleaned that the following propositions have been considered by the court to be at least arguable to a sufficient extent to justify a finding of substantial grounds.
(i) The assessment by the RAT of the credibility of an appellant and his/her story forms part of the decision making power conferred by the Refugee Act, 1996 and therefore, in accordance with the principles set out in East Donegal Cooperative Limited v. The Attorney General [1970] I.R. 317 such assessment must also be carried out in accordance with the principles of constitutional justice; Traore v. The Refugee Appeals Tribunal and Anor. (Unreported, Finlay Geoghegan J., 14th May 2004).
(ii) Where the assessment of the credibility of an appellant places reliance upon a significant error of fact in a manner adverse to the applicant such error renders the decision invalid; [Traore].
(iii) While the assessment of credibility is a difficult and unenviable task it is not permissible to place reliance "on what one firmly believes is a correct instinct or gut feeling that the truth is not being told". Such a process is an insufficient tool for use by an administrative body such as the Refugee Appeals Tribunal. Conclusions must be based on correct findings of fact. [Da Silveria v. The Refugee Appeals Tribunal and Others] (Unreported, High Court 9th July, 2004. Peart J.)
(iv) A specific adverse finding as to the appellant's credibility must be based upon reasons which bear a legitimate nexus to the adverse finding. Kramarenko v. Refugee Appeals Tribunal and Anor. (Unreported, High Court, 2nd April 2004, Finlay Geoghegan J.) placing reliance on the decision of the United States Court of Appeals for the Ninth Circuit in Aguilera – Cota v. INS 914 F. 2d 1375, (9th Cir. 1990).
(v) A finding of lack of credibility must be based on a rational analysis which explains why, in the view of the deciding officer, the truth has not been told. [Zhuckova v. Minister for Justice, Equality and Law Reform and Anor.] (Unreported, High Court, 26th November 2004, Clarke J.).
He goes on to say:
"It should also be noted that in a number of judgments (including some of the above, Bujari v. Minister for Justice Equality and Law Reform and Anor, Unreported, High Court Finlay Geoghegan J. 7th May, 2003 and Camara v. Minister for Justice, Equality and Law Reform, Unreported, High Court, Kelly J. 26th July 2001) the Court has found guidance in relation to the Refugee and Asylum process in the relevant UNHCR materials. In my view it is arguable that such materials are persuasive as to the appropriate process to be followed save to the extent that they cannot alter or displace substantive and established law."
Later on at page 8 of his judgment the learned judge says the following:
"That being said it must also be emphasised that any such additional scrutiny could not go so far as to entitle the court to supplant its own judgment in the assessment of those materials for that of the Tribunal decision maker. For the court to do so would be for the court to override the clear intention of the Oireachtas to the effect that, subject only to judicial review, the decision of the RAC, or in the event of an appeal the RAT, should be final. There must, therefore, be a limit as to the extent to which it is appropriate for the court to seek to analyse the decision making process. In that regard it should be noted that a certain degree of caution needs to be exercised in the adoption of determinations of courts in other jurisdictions which may have been engaged in the exercise of an appellate rather than review jurisdiction."
I am of opinion that all decisions of the RAT and in particular the one appearing in this case, must be taken as a whole. It is idle to focus on a discrete part and to subject it to such intense analysis in isolation so that its significance in the overall decision becomes unacceptably exaggerated.
I propose at this stage to go through the Decision to examine the reasons set out in the Decision as they appear in it. The respondent firstly says that he has considerable hesitation in believing the whole story of the applicant because of the inconsistencies and omissions between the information contained in the application for refugee status questionnaire, the interview notes and the evidence given by the applicant at the oral hearing. The immediate difficulty that we have here is that we do not have evidence of what evidence was given at the oral hearing, but I think it is probably fair to say and in this regard I would be inclined to agree with Mr. Power, that there are not any significant discrepancies between the questionnaire and the interview notes. Indeed there is a remarkable trend or pattern of consistency between them. I suppose the one major discrepancy that arises is the fact that the hit and run incident is not mentioned in the questionnaire but emerges in the interview in response to questioning by the interviewer. Beyond that, it would appear to me that there is a broad measure of consistency between the two. I am of course unable to reach any conclusion as to whether or not inconsistency arose between either or both of these documents and the evidence that arose in the course of the hearing of the Tribunal and of course the burden lay upon the applicant to adduce evidence in that regard and that has not been done.
However what is significant about this particular item in the reasoning, is that to which I have already referred and that is in my view, that the applicant in her submissions and counsel in submissions, have isolated this particular part of the decision and in my view subjected it to the kind of intense analysis which takes its significance out of context in the overall scheme of the decision and gives to it what I would think is an exaggerated importance. If one moves on then to the further reasons that are mentioned, he then goes on to say that: "I note that the applicant submitted three medical reports two following the alleged hit and run incident in October of 2002 and the third following an alleged assault on 3rd July, 2003, prior to coming to Ireland" and he says that: "I note the contents of these reports but do not find them to be of any probative value."
The applicant took considerable exception to what she perceived as the dismiss of these reports as being of no probative value. When one reads these medical reports what becomes abundantly clear, is that while the one relating to the hit and run does describe an injury, an enclosed head injury, it does not say anything else that would in any sense relate to the claims being made by the applicant namely that this was a deliberate assault and I suppose surprisingly as well there is absent from the medical report, any mention of any other injury which one might expect to find in somebody who had been the victim of any kind of a car accident be it a hit and run or otherwise. In that sense one would have to say that it was hard to find fault with the conclusions that that particular medical report didn't have any great probative value. It did of course establish that an incident had occurred which caused an injury to the applicant which caused her unfortunately to have a miscarriage but it stops a long way short of relating those injuries to the kind of claims made by the applicant.
Similarly the medical report which relates to the assault in July of 2003, it describes a relatively minor injury to one eye, but of course, it could be said consistent with an assault as described, but again the report is entirely deficient of any complaints as to how the injury occurred and any circumstances leading to the injury and again it does not prove that the claims made by the applicant are substantiated. It does of course establish or does assist in supporting the applicant's claim that an incident, did occur which resulted in injury to her but that of course is not the issue. The Tribunal was not concerned as to whether or not she had suffered injuries in a car accident or whether she had suffered injuries in some other way. What would have been of significance to the Tribunal was how these came about and in that respect unfortunately these medical reports are not probative of the events that led up to these injuries being suffered and in that respect I would be inclined to the view that fault cannot be found with the conclusion by the Tribunal that these reports were not of probative value.
He goes on then to say: "I also note that the applicant confirmed in evidence that she was not under any surveillance between October 2002, the dates of the alleged hit and run and July 2003, when she apparently was assaulted when she left a meeting." And he then goes on to set out a number of other matters which I have already quoted, leading down finally to a conclusion that the responses given by the applicant in both her questionnaire and interview and her evidence to the Tribunal were not supportive of her claim.
I am satisfied that the Tribunal did assess credibility correctly by reference to factors which are set out in the decision, all of which it was entitled to treat as factors relevant to an assessment of the applicants credibility. It was of course a matter for the Tribunal as to what weight it attached to each of these factors and that is something that this court cannot interfere with but it is clear to me that all of the factors which are mentioned were individually and collectively relevant to an assessment of credibility carried out on a rationale basis and in my view the exercise of assessing the credibility of the applicant was carried out in accordance with law and it is not for this court to question the weight given to those factors or to interpose its judgment on the correct weighting of these factors.
This brings me to the second issue which was raised by the applicant in submissions, where the applicant complains that certain matters were not put to her, which ultimately became significant factors in the assessment of credibility. The first of these factors was the role of her husband and that it was never put to her that the activities of her husband were in some way or other inconsistent with her claims to having a fear of persecution. The second matter was, that there was no evidence that she was not challenged on the fact that no evidence was given at the hearing concerning her complaint that her daughter was unable to take up gymnastics either to compete or to practice in Moldova because of her mothers membership of the PPCD. The third matter of complaint was that it was not put to her that the hit and run accident did not happen and finally the fourth matter which was complained of, was that she was not challenged on reasons for her failure to have applied for asylum until 4th September 2003. In making this submission Mr. Power relies on the judgment of Clarke J. and in particular the following passage which commences at page 9 of his judgment in the case of Idiakeheua v. the Minister for Justice Equality and Law Reform. Judgment was delivered in May of 2005 and the learned judge says the following commencing at page 9.
"If a matter is likely to be important to the determination of the RAT then that matter must be fairly put to the applicant so that the applicant would have an opportunity to answer it. If that means the matter being put by the Tribunal itself then an obligation to do so rests upon the Tribunal. Even if, subsequent to a hearing, while the Tribunal member is considering his or her determination an issue which was not raised, or raised to any significant extent, or sufficient at the hearing appears to the Tribunal member to be of significant importance to the determination of the Tribunal then there remains an obligation on the part of the Tribunal to bring that matter to the attention of the applicant so as to afford the applicant an opportunity to deal with it. This remains the case whether the issue is one concerning facts given in evidence by the applicant, questions concerning country of origin information which might be addressed either by the applicant or by the applicant's advisors or, indeed, legal issues which might be likely only to be addressed by the applicant's advisors.
In setting out the above I would wish to make clear that the obligation to fairly draw the attention of the applicant or the applicants advisors to issues which may be of concern to the Tribunal arises only in respect of matters which are of substance and significance in relation to the Tribunal's determination. White J. in Nguedjo came to the view he did because, on an analysis of the determination of the Commissioner in that case he was satisfied that the matter not put "is or has been so crucial to the determination made in this particular case". I am also satisfied it is at least arguable that there must be some reaosnbale proportionality between the extent to which attention is drawn to an issue and the importance which the Tribunal is likely to attach to it. A mere casual reference to a matter which turns out to be central to the Tribunal's determination may be insufficient to meet a test of "drawing reasonable attention to factors which may influence the Tribunal's determination".
Further on in his judgment at page 11 the learned judge said the following and I quote:
"In respect of the second of the above matters I am not satisfied that the applicant has made out an arguable case. The statute, in express terms, requires the RAT to have regard, inter alia to the s. 13 report in the course of its determination. The applicant has an opportunity to consider the s. 13 report in advance of the hearing. The applicant is, therefore, aware of any of the matters which are set out in the s. 13 report and has an opportunity to deal with them in the course of evidence. I am not satisfied, therefore, that there is any obligation on the part of the Tribunal or the representative of the Commissioner to raise any such matters in the course of questioning the applicant. The applicant is already aware of any adverse concerns in the report and has a fair opportunity to deal with same whether by evidence or argument."
There is no doubt in my view that the Tribunal has a duty to ensure that the applicant is given every reasonable opportunity to deal with all of the factors which could materially influence the decision. However the Tribunal is entitled to have regard to the procedures already completed and the knowledge necessarily gained by the applicant from that process and in particular a Tribunal is entitled to have due regard to the fact that the applicant was legally represented. That being so it was not necessary for the Tribunal to in effect act as counsel, as a court would do with a lay litigant. Having regarded to the fact of legal representation the Tribunal could quite properly, not ask questions or seek to lead evidence where that was not done by the legal representatives of the applicant. All the matters of which complaint is now made, of not being put, arose from information given by the applicant in the course of the questionnaire, or the interview or in oral evidence. Here we have a difficulty again to which I have already referred. We have no evidence of what transpired in the oral hearing before the Tribunal and indeed we have no evidence that these matters were in fact, not put.
Dealing with these items individually, firstly the complaint that the role of the plaintiff's husband was not put in the context of that damaging the credibility of the applicant's story, the facts relative to the role played by the applicant's husband all came from the applicant herself and or were not at all in dispute. It would seem to me that cross-examination relative to these matters would have served no useful purpose. The applicant was asked questions in the course of the interview concerning her husband and did have an opportunity to offer whatever explanation she saw fit but thereafter it was a matter in my view for the Tribunal to draw such inferences as reasonably arose from the evidence as it stood and it would seem to me to be unreal to suggest that the general inference of incredulity which might arise in the judgment of the Tribunal would have to then subsequently be put back to the applicant for comment.
Now the second matter relates to the comment in the course of the decision, that no evidence was given in the Tribunal concerning the alleged problem that the applicant's daughter had in pursuing her gymnastic career. Having regard to the fact that the applicant was legally represented at the hearing, there was clearly no obligation in my view on the part of the Tribunal to have questioned on that topic itself. It was entitled to have regard for the fact that the applicant was legally represented and therefore had every opportunity to raise this matter by way of evidence if she so wished, or if it was deemed to be proper and advisable for that to be done. It having not been done in the context of the applicant having legal representation, I am of the view that it was entirely appropriate for the Tribunal in its decision to note that fact and indeed to comment on it because the point in question was one which would appear to have been of importance to the claims being made by the applicant and the failure to have advanced it in evidence was clearly something which any Tribunal would be entitled to note and to comment on. The third matter which was raised was that it was not put to the applicant that the hit and run accident did not happen. Of course what has to be observed here is that that was not an issue. There was no issue as to whether or not the accident or the event occurred. That of course could never have been resolved as an issue by the Tribunal. The real issue was whether the event that occurred was an assault by the police, or other agents of the State. That aspect of the problem would appear to have been quite extensively explored in the procedures that were pursued. It was quite clear from the answers given by the applicant that she was unable to identify any of the occupants of the car and was unable to take the matter any further than the fact that she was struck by this car and believed that it was an assault. That being so it was difficult to see what useful purpose could be served by putting to her that the incident never occurred at all. Nobody was suggesting that an incident did not occur that was simply not an issue. The issue that necessarily arose derived from the context in which this event allegedly occurred.
The final matter which was complained of as not having being put was that she was not challenged on her reasons for not seeking asylum until 4th September. Again in relation to that, all of the facts emerged from the applicant and indeed all of the facts were clear and none of them were in dispute and these were that she flew from Moldova to London, from then on to Belfast and she got a taxi down from Dublin. She crossed over the border, did not come through any checkpoint and therefore there was no relevant authority for her to report to immediately. The delay which was obviously quite short would appear to have been of little or no significance and the only issue of relevance which would appear to arise from the relatively short delay in making her application for asylum was that perhaps it could have been alleged that when she came into the country and by the method by which she did, that she did not intend to apply for asylum at all. That was the only potential issue that would have arisen, and that suggestion simply never arose at all, it didn't come into the case and that being so it seems to me that this point is of little significance and probably carried little or no weight in the overall assessment of her credibility.
I am satisfied therefore that there was no dereliction on the part of the Tribunal in failing to have put these matters expressly to the applicant in the oral hearing if in fact that occurred because it has to be borne in mind that there is no evidence that these matters were in fact not put.
Conclusion
Finally I have come to the conclusion that all of the grounds of the applicant's case fail and it must be dismissed.
Approved : O'Neill J. on 2/11/05